At the September 2011 meeting, the
Committee discussed Rule 58's requirements related
to notice of entry of judgment. At the January 2012 meeting, the Committee discussed
proposed amendments to Rule 58, Rule 77 and appellate Rule 4 that would put the duty to
provide notice of entry of judgments and orders on the clerk. The Committee tabled the
proposed amendments pending answers to how the proposals, if adopted, would be handled
by clerk staff and the Odyssey case management system.

Electronic
Notice:

The Committee asked whether clerks
could provide notice of entry of judgments and orders
through the Odyssey system as is done by the federal case management system. Staff
obtained an answer from court technology chief Larry Zubke. This cannot be done yet, but
the courts are planning to adopt the necessary technology once it becomes available. At the
last Odyssey user group meeting, they were discussing going live with a new file and serve
system Nov. 1 and going with mandatory e-filing and service on April 1, 2013. This has to
be approved by the Court Technology Committee and the Court.

At present, Odyssey is essentially an
electronic version of the paper filing system the
courts previously used. Parties send in paper or electronic documents and the clerk puts
these documents in electronic files. Parties are not required to file electronically or to
accept electronic service so there is no uniform way to contact parties. If the clerks are
required to send notice of orders entered, they will need to look up all the parties and
send them notice by email or postal mail, whatever is appropriate for the given party.

Now, if the clerks were required to send
out notice of entry of judgments and orders in
all cases, as proposed in the draft amendments to Rules 58 and 77, this would increase
their workload. At the September and January meetings, however, the discussion showed
that this workload does not necessarily need to fall wholly on the clerks because some
judges have already taken on the role of sending notice of their own memorandum
opinions and orders themselves. Therefore, staff has made a small change to the proposed
amendments to Rule 77 that would place the duty to send out notice on the institution of
the court rather than specifically on the clerk.

The intent of this proposed change is to
allow each court to make its own decision on
how to allocate the duty to provide notice and what methods to use. For example, the
presiding judge or court administrator could direct that chambers would give notice of
orders they enter and clerks give notice of other orders.

Current Problems With
Notice:

Petra Hulm, the chief deputy clerk of the
Supreme Court, has identified an issue relevant
to the Committee's discussion of Rule 58, Rule 77 and appellate Rule 4. Recently, there
have been several instances of the Court receiving civil appeals in which no Rule 58
Notice of Entry of Judgment was served. In these cases (all from Eastern N.D.) the
parties received a "Notice of Entry," sometimes accompanied by an affidavit of service,
from the district court. The prevailing parties then apparently decided not to serve a
Notice of Entry of Judgment as required by Rule 58, possibly thinking that all notice
necessary had been taken care of through the district court sending out notice of entry.
One pro se litigant who did not receive the Rule 58 notice has appealed multiple cases,
and the Court has allowed the appeals to proceed even though the appeal time would have
expired long ago had a Rule 58 notice been sent. An email from Ms. Hulm discussing this
issue is attached.

Adopting the amendments to Rule 58,
Rule 77 and appellate Rule 4 would address the
issue raised by Ms. Hulm because the proposed amendments would start the appeal clock
running on entry and place the duty of sending notice of entry on the court, relieving
attorneys of the need to send Rule 58 notices. If the Committee does not favor approving
the proposed amendments, it may wish to discuss what alternative approaches could be
used to address the problem under the existing system.

Staff has prepared an alternative version
of Rule 77, attached as "Alt. A," which
attempts to address this issue. It would require the court to notify parties when orders or
judgments are entered, but would still require the prevailing party to serve a formal notice
of entry of judgment and is a companion to Rule 58 "Alt. A," which will be discussed
below.

Filing the Notice of Entry of
Judgment:

The problem that brought Rule 58 before
the Committee in September was inconsistent
policy for filing copy judgments in the Odyssey system. Some attorneys who attempted
to file a copy judgment with their notice of entry of judgment were having the copy
judgment returned and being instructed by clerk staff that filing was not allowed.
Discussion by the Committee revealed that there was a disconnect between what Rule 58
allowed and what Odyssey operations policy allowed. The Committee made several
proposals on how this problem could be remedied and asked in a letter to the Court
Technology Committee whether these proposals could be implemented.

The Odyssey User Group discussed this
issue on March 22, with staff providing
background on the Committee's proposals. Ultimately, the group decided that clerk staff
should file the copy judgment as a subdocument to the notice of entry judgment, which is
essentially what the Committee proposed. Attorneys who e-file their pleadings will have
to make sure that they submit the notice of entry and the copy judgment as one document
because the system does not allow the clerks to turn two separately submitted documents
into one document. The clerks will be trained on the appropriate way to handle notice of
entrys submitted with copy judgments, and they will instruct attorneys on the proper way
to submit these documents when e-filing.

Suggestions were made at the user group
meeting that a compromise that would serve
both the courts and attorneys would be to amend Rule 58 to allow attorneys to continue
to serve copy judgments but to file only information on the judgment docket number and
date instead of the copy judgment. It was pointed out that judgments that are e-filed are
given a docket number almost instantaneously that could then be used to specifically and
positively identify the judgment to which the notice of entry refers. Proposed
amendments to Rule 58 incorporating this suggestion are attached, labeled "Alt.
A."